Authored by Dean R. Dietrich
This blog is a follow up regarding compliance with the Emergency Order involving the requirement of the wearing of face coverings in public buildings.
Everyone has been anticipating litigation that would be commenced to block the Emergency Order or that the Senate and Assembly would meet to overturn the Emergency Order. As of August 17, neither of these actions have taken place. A lawsuit has been filed in Dane County by a local coffee shop challenging the enforceability of the Emergency Order but that does not appear to be a lawsuit that is embraced by a number of groups. The lack of action may indicate that various conservative groups are willing to live with the mask-wearing requirement in light of the volatility of the Coronavirus infections.
It is still safe to say that businesses are taking a variety of positions regarding the enforcement of the Emergency Order. It would be very challenging if a business denied access to a building open to the public because an individual decides not to wear a mask. Clearly, the business could contact the police or the local health department to advise that there is a violation of the Emergency Order but the business would not, by itself, be authorized to issue a citation to the individual.
Here are some common questions and thoughts:
- Can you stop a person from entering a public portion of a building because they do not have a mask?
My recommendation is that you post signs indicating that a mask is required in the building and have masks available for individuals to put on as they enter the building. I do not recommend that you “bar” a person from entering the building because they are not wearing a mask. This could lead to physical confrontations and there would be questions regarding the action taken by you which could be considered a violation of a person’s right to enter a public building. The case law is simply not clear on this point. I believe you need to strongly encourage an individual to wear a mask by providing a mask for the individual but not blocking their entrance into the building.
- Can we require employees to wear a mask?
You can require employees to wear a mask. A business entity has the right to set the working conditions for its employees.
You can have a general requirement that employees must wear a mask when in the building but you must honor any instance where the employee or visitor indicates that the employee or visitor has a medical condition that prevents the person from wearing a mask. You have the right to ask for a doctor’s note indicating that the employee or a visitor is not able to wear a mask although you should not inquire regarding the nature of the medical condition that creates that requirement. The information that you receive should be treated as health information and protected from disclosure to others.
Unfortunately, a shield does not qualify as a mask under the Emergency Order. I would recommend that you communicate with the employee regarding that option before a decision is made. I do think the business could require an employee that has a medical reason for not wearing a mask, to wear a shield to at least provide some level of protection to others in the building. It would be best that the employer provide the face shield for that situation.
- Can the employer require an employee to wear a shield instead of a mask if the employee has a medical reason for not being able to wear a mask?